1268.05 BOARD OF ZONING APPEALS. (ADMINISTRATIVE BOARD FOR PLANNING AND ZONING APPEALS)
   (EDITOR'S NOTE: Section 3.10 of the City Charter, which provided for the appointment of a Board of Zoning Appeals, was repealed by the voters on November 4, 1980. The functions of the Board are now performed by the Administrative Board for Planning and Zoning Appeals, under authority of Section 3.09 of the City Charter, as amended on November 4, 1980. This Section 1268.05 has been amended to conform to new Section 3.09 of the City Charter.)
   (a)   Composition and Officers. Vacancies shall be filled for the unexpired term only. Members may be removed for cause by Council upon written charges and after a public hearing within thirty days after the filing of such charges.
   (b)   Meetings and Records. Meetings of the Board shall be held at the call of the President and at such other times as the Board may determine. Such President or, in his or her absence, the Vice-President, may administer oaths and compel the attendance of witnesses. All meetings of the Board shall be open to the public. The Board shall keep minutes of its proceedings, showing the vote of each member upon each question or, if absent or failing to vote, indicating such fact, and shall keep records of its examinations, testimony and official actions, all of which shall be filed in the office of the Clerk of Council and shall be a public record.
   (c)   Filing Procedure. Written application for a variance, conditional use permit or special exception shall be filed with the Code Enforcement Officer, who shall transmit the same, together with all the scale plot drawings, plans, specifications and other papers pertaining to the application, to the Board. Written application for an administrative appeal shall be made directly to the Board, as well as to the Code Enforcement Officer.
   (d)   General Powers.
      (1)   In exercising its powers, the Board shall act in strict accordance with State law and the provisions of this Zoning Code. The Board may reverse or affirm, wholly or in part, or may modify an administrative decision or zoning requirement, and to that end the Board shall have all powers of the Code Enforcement Officer and the Planning Commission from whom the appeal is taken. The Board may impose conditions regarding location, character or other features of the proposed lot or building. The Board shall not, however, permit any use which is not a permitted use in a particular zoning district. Appeals from the decision of the Board may be heard by a court of appropriate jurisdiction.
      (2)   The Board has the specific power to make decisions on appeals of administrative decisions, variances, special exceptions and conditional uses as outlined below in the following subsections.
      (3)   All applications made to the Board of variances, conditional use permits, special exceptions and administrative appeals shall be in writing and shall be filed with the Code Enforcement Officer at least fourteen days prior to the meeting at which they are to be heard. Each application shall refer to the specific provisions of this Zoning Code and shall set forth exactly a clear description of land involved, the interpretation that is claimed, the details of the variance proposed to be granted, the use for which a conditional use permit is sought, the reasons justifying the special exception and as the case may be.
      The Board shall decide all applications and appeals within sixty days after completion of the hearing. Such decision shall be binding upon the Code Enforcement Officer and/or the Planning Commission. The terms and conditions of the decision by the Board shall be incorporated into any zoning permit or certificate of occupancy whenever such is authorized by the Board.
      The presence of three members shall constitute a quorum. A concurring vote of three members of such Board shall be necessary to reverse an order, requirement, decision or determination of the Code Enforcement Officer or Commission to decide in favor of the applicant on any matter upon which it is required to pass by this Zoning Code or to grant a variance from the requirements of this Zoning Code. The Board shall act by resolution and a copy of each resolution duly adopted shall be filed in the office of the Clerk of Council.
      (4)   Every special exception, variance or conditional use permit allowed or granted by the Board shall expire and be of no force or effect after the expiration of twelve months from the date thereof, unless the beneficiary of such variance, conditional use permit or special exception has actually, within such period, put the subject property to the purpose for which such variance, conditional use permit or special variance has been granted or allowed.
   (e)   Specific Powers Relative to Administrative Errors (Administrative Appeal). The Board shall hear and decide appeals where it is alleged there is an error in any order, requirement, decision or determination made by the Code Enforcement Officer in the enforcement of this Zoning Code. Any person claiming to be aggrieved by any order, requirement or decision made by the Code Enforcement Officer may appeal to the Board. Such appeal shall be taken within twenty days of the date of the decision by filing with the Code Enforcement Officer from whom the appeal is taken and with the Board a notice of appeal specifying the grounds thereof. The Code Enforcement Officer shall transmit to the Board all of the papers constituting the record upon which the action appealed from is taken. Normally, such review by the Board is limited to alleged errors in interpretation of this Zoning Code.
      An appeal stays all proceedings in furtherance of the action appealed from, unless the Code Enforcement Officer from whom the appeal is taken certifies to the Board, after the notice of appeal is filed with him or her, that by reason of the facts stated in the application a stay would, in his or her opinion, cause imminent peril to life and property. In such case, proceedings shall not be stayed other than by a restraining order which may be granted by the Board or by a court of record on application, on notice to the Code Enforcement Officer from whom the appeal is taken on due cause shown.
   (f)   Specific Powers Relative to Conditional Uses.
      (1)   Application for a conditional use permit shall be made by the property owner or agent thereof to the Board, on a form prescribed by the City at least fourteen days prior to the meeting. The application fee for a conditional use permit shall, except as hereinafter provided, be in such amount as is prescribed by resolution of Council. The application under this section shall be accompanied by maps and drawings necessary to demonstrate that conditions set forth herein will be fulfilled. The Board is authorized to issue a conditional use permit to permit conditional uses as indicated in Section 1266.01, provided that they meet all the conditions for approval specified in that section.
      (2)   The purpose of a conditional use permit is to allow a proper integration into the community of uses which may only be suitable in specific locations within certain zoning districts or only if such uses are designed or laid out in a particular manner on the site. A conditional use permit shall be required for all uses listed as conditional uses. in the district regulations and in Section 1266.01(a).
      (3)   In considering an application for a conditional use, the Board must make an affirmative finding that:
         A.   The proposed conditional use is to be located in a district where such use may be permitted.
         B.   The conditions for approval of a conditional use as set forth in Section 1266.01have been met.
         C.   The proposed conditional use, in addition, meets all the requirements specified for the zoning district in which it is located.
         In addition, the Board shall give due regard to the nature and condition of all adjacent uses and structures and, in issuing a conditional use permit, the Board may impose such requirements and conditions with respect to location, design, siting, maintenance and operation of the use, in addition to those expressly provided in Section 1266.01for the particular use, as may be necessary for the protection of adjacent properties and in the public interest. Before issuing a conditional use permit, the Board shall determine that the establishment, maintenance and operation of a proposed conditional use is generally consistent with the provisions of the Englewood Comprehensive Land Use Plan and will not be detrimental to the health, safety, peace, comfort or general welfare of persons or property in the City.
      (4)   If the nature of the conditional use is closely related to one of those listed in Section 1266.01(a), the applicant may apply for a conditional use permit for the conditional use which most closely relates to the primary use, provided that the requirements of all related uses are met.
An existing lawful use, which is listed herein as a conditional use and which is located in a district in which such conditional use may be permitted, shall be considered a conforming use.
Any expansion of such conditional use involving the enlargement of the buildings, structures and land area devoted to such use shall be subject to the procedure described in this section.
(Ord. 79-56. Passed 11-13-79.)
   (g)   Specific Powers Relative to Special Exceptions.
      (1)   Application for a special exception shall be made by the property owner or agent to the Board on a form prescribed by the City at least fourteen days prior to the meeting date. A special exception may be granted to allow the following situations:
         A.   To permit extension of a zoning district where its boundary line divides a lot held in single ownership on the effective date of this Zoning Code
(Ordinance 79-56, passed November 13, 1979);
         B.   To permit the erection and use of a building or the use of premises for public utility purposes;
         C.   To permit the reconstruction of a nonconforming building which has been damaged by explosion, fire, act of God or the public enemy to the extent of more than sixty percent of its reasonable value where the Board finds some compelling public necessity requiring a continuance of the nonconforming use and the primary purpose of continuing the nonconforming use is not to continue a monopoly;
         D.   To permit the one-time enlargement of existing nonconforming buildings upon the same lot occupied by such building or upon an adjoining lot, provided that such lot was under the same ownership as the lot on which such nonconforming building existed at the time such buildings became nonconforming, and provided that such enlargement is necessary and incidental to the existing use of such building, and further provided that such enlargement conforms to the height, yard and area requirements of the zoning district in which it is located where such enlargements are not detrimental to present and potential surrounding uses and will be in harmony with the general purpose and intent of this Zoning Code and will not be injurious to the neighborhood or otherwise detrimental to the health, safety and general welfare of the residents of the City;
         E.   To vary parking and loading and unloading regulations whenever the character or use of the building is such as to make unnecessary the full provision of parking and loading and unloading facilities or when such regulations would impose an unreasonable hardship upon the use of the lot as contrasted with merely granting an advantage or a convenience;
         F.   To permit the substitution of one nonconforming use for another, where the Board finds evidence that the proposed use will be less detrimental to the neighborhood than the existing use and where there is substantial evidence that the structure to house the proposed substitution is ill-suited by architectural and physical design to either a permitted or conditional use in a given zoning district; and
         G.   To allow more than one principal structure on a single zoning lot if the provisions of Section 1260.03(h)(2) to (4) are met.
      (2)   Before any special exception shall be issued, the Board shall make written findings certifying compliance with the specific rules governing individual special exceptions and determine that satisfactory provision and arrangement have been made concerning the following, where applicable:
         A.   Ingress and egress to property and proposed structures thereon, with particular reference to automotive and pedestrian safety and convenience, traffic flow and control and access in case of fire or catastrophe;
         B.   Off-street parking and loading areas where required, with particular attention to the items in subparagraph (2)A. hereof and the economic, noise, glare or odor effects of the special exception on adjoining properties and properties generally in the district;
         C.   Refuse and service areas, with particular reference to the items in subparagraphs (2)A. and B. hereof;
         D.   Utilities, with reference to location, availability and compatibility;
         E.   Screening and buffering, with reference to type, dimensions and character;
         F.   Signs, if any, and proposed exterior lighting, with reference to glare, traffic safety, economic effect and compatibility and harmony with properties in the district;
         G.   Required yards, open space and other requirements of these Codified Ordinances, especially Chapter 1266.
         H.    General compatibility with adjacent property and other property in the district.
(Ord. 88-8. Passed 5-10-88.)
   (h)   Specific Powers Relative to Variances. The Board shall have the power to authorize upon appeal in specific cases, filed as hereinbefore provided, such variances from the provisions or requirements of this Zoning Code as will not be contrary to the public interest, but only in the case of peculiar conditions, involving irregular, abnormally narrow, shallow or steep lots or other unusual conditions, whereby strict and literal application of such provisions or requirements would result in practical difficulty and unnecessary hardship that would deprive the owner of the reasonable use of the land or buildings involved. No variance from the strict application of any provision of this Zoning Code shall be granted by the Board, unless it finds that all of the following facts and conditions exist:
      (1)   Special conditions and circumstances exist which are peculiar to the land, structure or building involved and which are not applicable to any other land, building or structure within the same zoning district.
      (2)   Literal interpretation of the provisions of this Zoning Code would deprive the applicant of rights commonly enjoyed by other properties in the same zoning district under the provisions of this Zoning Code.
      (3)   Special conditions and circumstances shall not result from the actions of the applicant.
      (4)   Granting the variance requested will provide the minimum necessary relief to alleviate the hardship.
      (5)   Granting of the variance will be in harmony with the general purpose and intent of this Zoning Code and will not be injurious to the neighborhood or otherwise detrimental to the public welfare.
      (6)   The proposed variance will not constitute a change of zoning district, including a variation in use, on the Official Zoning District Map. In no case shall the Board approve a variance for a use which is not a permitted use in the zoning district in which the property, building or structure is located.
   No nonconforming use of neighboring lands, structures or buildings in the same district, and no permitted or nonconforming use of land, structures or buildings in other districts, shall be considered grounds for the issuance of a variance.
   Following disapproval by the Board of an application or request for a variance from the literal interpretation of this Zoning Code, no subsequent application requesting the same variance shall be filed by any applicant, whether he or she is the same person, firm or corporation, until the expiration of twelve months after the original or subsequent disapproval.
   The Board shall cause to be made a record of all its proceedings, setting forth its reasons for its decisions. Such record, immediately following the Board's decision, shall be filed in the offices of the Board and the Planning Commission and shall be open to public inspection.
   (i)   Appeals Procedure. Appeals from the Board in its decisions on administrative error, variances, conditional uses, special exceptions and related matters shall be to the Court of Common Pleas of the County, as provided by the statutes of the State.
(Ord. 79-56. Passed 11-13-79. )